Petition for Writ of Certiorari — Luis Enrique Beltran-Cervantes, Petitioner v. United States

No. 17-____________

In the

Supreme Court of the United States

___________

LUIS ENRIQUE BELTRAN-CERVANTES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent,

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

APPENDIX

___________

Index to Appendices

Appendix A Judgment and Opinion of the United States Court of Appeals for the

Fifth Circuit

Appendix B Judgment and Sentence of the United States District Court for the

Northern District of Texas

APPENDIX A

United States v. Beltran-Cervantes, --- Fed.Appx. ---- (2017)

2017 WL 4641260

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See Fed. Rule of Appellate Procedure 32.1

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issued on or after Jan. 1, 2007. See also

U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

United States Court of Appeals,

Fifth Circuit.

UNITED STATES of America, Plaintiff–Appellee

v.

Luis Enrique BELTRAN–CERVANTES,

Defendant–Appellant

No. 16–10149

|

October 16, 2017

Appeal from the United States District Court for the

Northern District of Texas, USDC No. 4:15–CR–211–1

Attorneys and Law Firms

James Wesley Hendrix, Assistant U.S. Attorney, U.S.

Attorney's Office, Dallas, TX, for Plaintiff–Appellee.

Jerry Van Beard, Esq., Assistant Federal Public Defender,

Kevin Joel Page, Federal Public Defender's Office, Dallas,

TX, for Defendant–Appellant.

Before WIENER, HIGGINSON, and COSTA, Circuit

Judges.

Opinion

PER CURIAM: *

*1 Luis Enrique Beltran–Cervantes pleaded guilty to

illegal reentry following deportation. The Guidelines

range for his offense was 10 to 16 months. Rather than

impose a sentence within that advisory range, the district

court sentenced Beltran to 72 months in prison.

In explaining why it imposed the above-Guidelines

sentence, the district court cited a number of the

sentencing factors that Congress directed federal judges to

consider, including the history and characteristics of the

defendant, nature and circumstances of the offense, and

need to protect the public from further crimes. 18 U.S.C. §

3553. In explaining why it believed those factors supported

a significant upward variance, the court cited Beltran's

“very violent criminal past,” his gang membership, and

his two prior illegal reentries into the United States.

In terms of Beltran's history of violence, the court

discussed the details of Beltran's juvenile conviction for a

violent assault. It then noted that he also had an assault

conviction as an adult for punching the father of his

girlfriend in the face and then pulling a knife on the father

and trying to cut him when the father tried calling the

police. Beltran received no criminal history points for the

assault convictions. The same was true for a harassment

conviction based on Beltran's threatening to kill his

girlfriend. Beltran also received no criminal history points

for a contempt of court conviction. The court noted the

failure of the Guidelines to account for those convictions

(either because they were too old or the sentence was too

brief). The court also cited a separate contempt conviction

for which Beltran did receive criminal history points, as

well as two other convictions also included in the criminal

history scoring: marijuana possession and a prior illegal

reentry. The court further noted that while incarcerated

for that federal reentry felony, Beltran violated three

prison rules. The infractions were for possession of

homemade intoxicants, insolence to a staff member,

and assault without serious injury. These disciplinary

violations occurred while Beltran was serving a 24–month

sentence for his first illegal reentry offense. That earlier

sentence was itself an upward variance, a factor the district

court mentioned three times in explaining the need for

another upward variance that would prevent Beltran from

committing additional crimes. Finally, the court noted

that the prior immigration conviction involved not just

Beltran's unlawful presence in the United States, but

his lying to an immigration officer and presenting false

papers.

Beltran acknowledges that the district court provided

reasons for its variance, but argues those do not justify the

extent of the variance that resulted in a 72–month sentence

that was more than four times greater than the top of the

advisory Guidelines range. He also contends that many of

the considerations the district court cited to explain the

sentence were already taken into account by the criminal

history section of the Guidelines.

*2 In assessing whether a district court abused its

discretion in imposing a non-Guidelines sentence, we

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1

United States v. Beltran-Cervantes, --- Fed.Appx. ---- (2017)

consider “the totality of the circumstances, including

the extent of any variance from the Guidelines range.”

United States v. Brantley, 537 F.3d 347, 349 (5th Cir.

2008). As Beltran emphasizes, a “major deviation from

the Guidelines range requires a greater justification than

a minor one.” United States v. Fraga, 704 F.3d 432, 440

(5th Cir. 2013); see also United States v. Smith, 440 F.3d

704, 707 (5th Cir. 2006) (explaining that the “farther a

sentence varies from the applicable Guidelines sentence,

‘the more compelling the justification based on factors in

section 3553(a)’ must be” (quoting United States v. Dean,

414 F.3d 725, 729 (7th Cir. 2005))). Even with substantial

variances, however, we give considerable “deference to the

district court's decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” United States

v. Broussard, 669 F.3d 537, 551 (5th Cir. 2012) (quoting

Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169

L.Ed.2d 445 (2007)).

We have affirmed sentences in which the extent of the

upward variance was similar to, even if slightly less than,

the one the imposed here. See, e.g., United States v.

Urbina, 542 Fed.Appx. 398, 399 (5th Cir. 2013) (affirming

a 60–month sentence, when the high end of the Guidelines

range was 14 months); United States v. Toropkin, 517

Fed.Appx. 243, 245–46 (5th Cir. 2013) (affirming a 24–

month sentence when the high end of the Guidelines was

six months); Brantley, 537 F.3d at 349–50 (affirming a

180–month sentence when the high end of the Guidelines

range was 51 months); United States v. Mejia–Huerta,

480 F.3d 713, 723 (5th Cir. 2007) (affirming a 120–month

sentence when the high end of the Guidelines range was

27 months); United States v. Ellis, 206 Fed.Appx. 325,

327 (5th Cir. 2006) (affirming a 96–month sentence when

the high end of the Guidelines range was 27 months).

And there is at least one case in which we affirmed a

substantially greater variance. United States v. Hebert,

813 F.3d 551, 561–63 (5th Cir. 2015) (affirming a 92–year

sentence when the high end of the Guidelines was 7 years).

Those cases demonstrate that even with a substantial

variance, the ultimate question in a challenge to the

substantive reasonableness of a sentence is whether the

district court articulated “individualized, case-specific

reasons” that justified the higher sentence. United States

v. Diehl, 775 F.3d 714, 724 (5th Cir. 2015) (quoting United

States v. McElwee, 646 F.3d 328, 338 (5th Cir. 2011)).

It did so here. The district court extensively discussed

not just the number of Beltran's prior convictions, but

the often violent conduct that gave rise to them. It also

focused on the various ways in which Beltran flouted

the criminal justice system: he sustained two convictions

for contempt, lied and presented fake documents to

immigration officers, and committed three infractions

while in federal custody. Finally, and seemingly of greatest

significance to the district court, the above-Guidelines

sentence for Beltran's first illegal reentry conviction failed

to “convince the Defendant not to continue to violate the

law.” It was not unreasonable to conclude that a greater

variance was needed the second time around to provide

the deterrence that the first sentence did not achieve.

We also reject both the factual and legal premise of

Beltran's argument that the district court impermissibly

based the variance on his criminal history that was

already accounted for in the Guidelines. In explaining

the reasons for its variance, the district court relied

on much besides the convictions that received criminal

history points. It cited convictions that did not receive

criminal history points, violations of prison rules, and

the failure of the prior illegal reentry sentence to deter

Beltran. In any event, a “district court may rely upon

factors already incorporated by the Guidelines to support

a non-Guidelines sentence.” Brantley, 537 F.3d at 350; see

also United States v. Williams, 517 F.3d 801, 809 (5th Cir.

2008) (“The Supreme Court's decision in Booker implicitly

rejected the position that no additional weight could be

given to factors included in calculating the applicable

advisory Guidelines range, since to do otherwise would

essentially render the Guidelines mandatory.”).

*3 The district court did not abuse its discretion in

sentencing Beltran to 72 months in prison. Its judgment is

AFFIRMED.

All Citations

--- Fed.Appx. ----, 2017 WL 4641260

Footnotes

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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2

United States v. Beltran-Cervantes, --- Fed.Appx. ---- (2017)

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

3

APPENDIX B

Case 4:15-cr-00211-O Document 23 Filed 01/26/16

Page 1 of 4 PageID 58

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

Fort Worth Division

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

v.

Case Number: 4:15-CR-00211-O(01)

U.S. Marshal’s No.: 42748-177

J. Michael Worley, Assistant U.S. Attorney

William Hermesmeyer, Attorney for the Defendant

LUIS ENRIQUE BELTRAN-CERVANTES

On October 13, 2015 the defendant, LUIS ENRIQUE BELTRAN-CERVANTES, entered a plea of

guilty as to Count One of the Indictment filed on September 16, 2015. Accordingly, the defendant is adjudged

guilty of such Count, which involves the following offense:

Title & Section

Nature of Offense

Offense Ended

Count

8 U.S.C. §§ 1326(a) and (b)(1)/(2)

Illegal Reentry After Deportation

August 20, 2015

One

The defendant is sentenced as provided in pages 2 through 3 of this judgment. The sentence is imposed

pursuant to Title 18, United States Code § 3553(a), taking the guidelines issued by the United States Sentencing

Commission pursuant to Title 28, United States Code § 994(a)(1), as advisory only.

The defendant shall pay immediately a special assessment of $100.00 as to Count One of the Indictment

filed on September 16, 2015.

The defendant shall notify the United States Attorney for this district within thirty days of any change of

name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this

judgment are fully paid.

Sentence imposed January 25, 2016.

____________________________________________

REED O’CONNOR

U.S. DISTRICT JUDGE

Signed January 26, 2016.

Case 4:15-cr-00211-O Document 23 Filed 01/26/16

Page 2 of 4 PageID 59

Judgment in a Criminal Case

Defendant: LUIS ENRIQUE BELTRAN-CERVANTES

Case Number: 4:15-CR-00211-O(1)

Page 2 of 4

IMPRISONMENT

The defendant, LUIS ENRIQUE BELTRAN-CERVANTES, is hereby committed to the custody of the

Federal Bureau of Prisons (BOP) to be imprisoned for a term of Seventy-Two (72) months as to Count One of

the Indictment filed on September 16, 2015.

The defendant is remanded to the custody of the United States Marshal.

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be placed on supervised release for a term of

Three (3) years as to Count One of the Indictment filed on September 16, 2015.

As a condition of supervised release, upon the completion of the sentence of imprisonment, the

defendant shall be surrendered to a duly-authorized immigration official for deportation in accordance with the

established procedures provided by the Immigration and Nationality Act, 8 USC § 1101 et seq. As a further

condition of supervised release, if ordered deported or removed, the defendant shall remain outside the United

States.

In the event the defendant is not deported immediately upon release from imprisonment, or should the

defendant ever be within the United States during any portion of the term of supervised release, the defendant

shall also comply with the standard conditions contained in the Judgment and shall comply with the mandatory

and special conditions stated herein:

While on supervised release, in compliance with the standard conditions of supervision adopted by the

United States Sentencing Commission, the defendant shall:

( 1)

( 2)

( 3)

( 4)

( 5)

( 6)

( 7)

( 8)

( 9)

(10)

not leave the judicial district without the permission of the Court or probation officer;

report to the probation officer as directed by the Court or probation officer and submit a truthful

and complete written report within the first five (5) days of each month;

answer truthfully all inquiries by the probation officer and follow the instructions of the

probation officer;

support the defendant's dependents and meet other family responsibilities;

work regularly at a lawful occupation unless excused by the probation officer for schooling,

training, or other acceptable reasons;

notify the probation officer within seventy-two (72) hours of any change in residence or

employment;

refrain from excessive use of alcohol and not purchase, possess, use, distribute, or administer any

narcotic or other controlled substance, or any paraphernalia related to such substances, except as

prescribed by a physician;

not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

not associate with any persons engaged in criminal activity and not associate with any person

convicted of a felony unless granted permission to do so by the probation officer;

permit a probation officer to visit the defendant at any time at home or elsewhere and permit

confiscation of any contraband observed in plain view by the probation officer;

Case 4:15-cr-00211-O Document 23 Filed 01/26/16

Page 3 of 4 PageID 60

Judgment in a Criminal Case

Defendant: LUIS ENRIQUE BELTRAN-CERVANTES

Case Number: 4:15-CR-00211-O(1)

(11)

(12)

(13)

Page 3 of 4

notify the probation officer within seventy-two (72) hours of being arrested or questioned by a

law enforcement officer;

not enter into any agreement to act as an informer or a special agent of a law enforcement agency

without the permission of the Court; and,

notify third parties of risks that may be occasioned by the defendant's criminal record or personal

history or characteristics, and permit the probation officer to make such notifications and to

confirm the defendant's compliance with such notification requirement, as directed by the

probation officer.

In addition the defendant shall:

not commit another federal, state, or local crime;

not possess illegal controlled substances;

not possess a firearm, destructive device, or other dangerous weapon;

cooperate in the collection of DNA as directed by the U.S. probation officer; and,

report in person to the U.S. Probation Office in the district to which the defendant is released from the

custody of the Federal Bureau of Prisons within 72 hours of release.

FINE/RESTITUTION

The Court does not order a fine or costs of incarceration because the defendant does not have the

financial resources or future earning capacity to pay a fine or costs of incarceration.

Restitution is not ordered because there is no victim other than society at large.

Case 4:15-cr-00211-O Document 23 Filed 01/26/16

Page 4 of 4 PageID 61

Judgment in a Criminal Case

Defendant: LUIS ENRIQUE BELTRAN-CERVANTES

Case Number: 4:15-CR-00211-O(1)

Page 4 of 4

RETURN

I have executed this judgment as follows:

Defendant delivered on _____________________ to ___________________________________

at ________________________________________________, with a certified copy of this judgment.

United States Marshal

BY

Deputy Marshal